State v. Scherz

• Decision Date: 24 July 2001
• Docket Number: No. 19322-5-III.,19322-5-III.
• Parties: STATE of Washington, Respondent, v. Michael Warren SCHERZ, Appellant.
• Court: Washington Court of Appeals

27 P.3d 252

107 Wash.App. 427

STATE of Washington, Respondent, v. Michael Warren SCHERZ, Appellant.

No. 19322-5-III.

Court of Appeals of Washington, Division 3, Panel Six.

July 24, 2001.

David N. Gasch, Spokane, for Appellant.

Kevin M. Korsmo, Andrew J. Metts, III, Deputy Pros. Attys., Spokane, for Respondent.

KURTZ, C.J.

Michael Warren Scherz appeals his Spokane County conviction for the crime of first degree robbery which, in this case, requires display of what appears to be a firearm or other deadly weapon. RCW 9A.56.200(1)(b). He contends (1) the court erred in instructing the jury that "display" includes the defendant indicating verbally or otherwise the presence of a deadly weapon, and (2) the evidence was insufficient to support the conviction. We agree with Mr. Scherz, and reverse the conviction and remand for entry of judgment and resentencing on the lesser degree offense of second degree robbery.

On August 30, 1999, Mr. Scherz entered a Washington Trust Bank branch in downtown Spokane. Wearing camouflage clothes, he approached teller Helen Boehme and stated, "I need about a thousand dollars. I have a hand grenade in my pocket and I need a thousand dollars." Report of Proceedings (RP) at 86. Ms. Boehme asked if he was serious; Mr. Scherz responded, "Yes." RP at 88. This made her fearful, so she gave him $1,000. He put the money in his pocket and left the bank. Ms. Boehme did not see a hand grenade or any other weapon.

FBI agents soon arrested Mr. Scherz in a nearby hotel lobby and seized most of the money from his person. He confessed to Agent Leland McEuen that he robbed the bank and that he had told the bank teller he had a hand grenade. Mr. Scherz also told Agent McEuen that he had reached into his left jacket pocket and pulled out the end of a set of toenail clippers "just a little bit to see the silver, so she'd think it was a grenade." RP at 140. But neither Ms. Boehme nor any of the other bank employees who witnessed the robbery saw the toenail clippers or anything else that appeared to be a weapon.¹ Agent McEuen did seize a pair of toenail clippers on a key chain from Mr. Scherz's person.

The court gave the following "to convict" instruction on the elements of first degree robbery:

To convict the defendant of the crime of robbery in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about [the] 30th day of August, 1999, the defendant unlawfully took personal property from the person or in the presence of another;

(2) That the defendant intended to commit theft of the property;

(3) That the taking was against the person's will by the defendant's use or threatened use of immediate force, violence or fear of injury to that person;

(4) That force or fear was used by the defendant to obtain or retain possession of the property or;[²]

(5) That in the commission of these acts the defendant displayed what appeared to be a firearm or other deadly weapon; and

(6) That the acts occurred in the State of Washington.

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

Instruction No. 8, Clerk's Papers (CP) at 47.

Over defense objection, the court gave Instruction No. 13: "Display, in addition to its common meaning, includes the defendant indicating (verbally or otherwise) the presence of a deadly weapon." CP at 52.

The court also gave Mr. Scherz's requested lesser degree instruction on second degree robbery, which is identical in elements to first degree robbery but without element (5) above—display of what appeared to be a firearm or deadly weapon.

The jury convicted Mr. Scherz of first degree robbery. He appeals. Mr. Scherz contends in his opening and reply briefs that the court erred in giving Instruction No. 13, based on its interpretation of State v. Henderson, 34 Wash.App. 865, 664 P.2d 1291 (1983) that words alone are sufficient to constitute the element of displaying what appears to be a deadly weapon. Mr. Scherz argues that Henderson requires some physical manifestation of the presence of a weapon in addition to words in order to satisfy the display element. In re Personal Restraint of Bratz, 101 Wash. App. 662, 5 P.3d 759,review denied (Wash. Dec. 5, 2000) (No. 70137-7). He asserts his conduct did not meet that element because no one in the bank saw anything resembling a weapon or any movement such as a hand to the pocket to indicate the presence of a weapon. And, the toenail clippers are irrelevant because no one saw them either. Mr. Scherz thus concludes he was prejudiced by the erroneous "display" instruction, without which the jury could only have convicted him of second degree robbery. He requests a remand for entry of judgment and resentencing on that lesser charge.

The State, on the other hand, contends it is State v. Kennard, 101 Wash.App. 533, 6 P.3d 38, review denied, 142 Wash.2d 1011, 16 P.3d 1267 (2000), and not Bratz, 101 Wash.App. 662, 5 P.3d 759, that presents the correct interpretation of Henderson. According to the State, Kennard holds that a mere verbal indication of a weapon is sufficient to meet the display element. This is because the effect of fear and apprehension compelling the victim to comply with the defendant's demand for money is the same regardless of whether the defendant brandished the weapon or the victim actually saw it. Instruction No. 13 was therefore a correct statement of the law in this case.

This court reviews a challenged jury instruction de novo, evaluating it in the context of the instructions as a whole. State v. Pirtle, 127 Wash.2d 628, 656, 904 P.2d 245 (1995). Generally, instructions are sufficient if they properly state the applicable law without misleading the jury, and permit each party to argue its theory of the case. State v. Riley, 137 Wash.2d 904, 909, 976 P.2d 624 (1999). All jury instructions must be supported by substantial evidence; it is prejudicial error to submit an issue lacking in such evidence to the jury. State v. Fernandez-Medina, 141 Wash.2d 448, 455, 6 P.3d 1150 (2000).

Analysis begins with Henderson, 34 Wash. App. 865, 664 P.2d 1291, in which the defendant was convicted of two first degree robberies. In the first, the defendant demanded that a convenience store employee give him "all the bills." Id. at 866, 664 P.2d 1291. The employee observed the defendant's right hand concealed in his right front pocket, which had a bulge. The employee did not see a weapon, but believed the defendant had a small caliber pistol and gave him the money. Id. In the second robbery, the defendant demanded that a store employee give him "all the money." The employee asked, "Are you kidding?" The defendant then put his right hand in his jacket pocket and, indicating the pocket, stated, "No. I have this." The employee did not see a weapon, but believed the defendant was armed and gave him the money. Id. at 867, 664 P.2d 1291.

Mr. Henderson contended his conduct did not meet the "display" element of first degree robbery in either case because he did not exhibit any weapon to the victims' sight. The court first observed that the first degree robbery statute does not define "display," but that its dictionary meaning includes "to spread or stretch out or wide: unfold ... exhibit to the sight or mind: ... manifest, disclose...." Id. at 867, 664 P.2d 1291 (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 654 (1976)). Moreover, by enacting the first degree robbery statute, it appeared the Legislature intended to proscribe conduct in the course of a robbery that leads the victim to believe the robber is armed with a deadly weapon, whether or not the weapon is actually loaded and operable, and whether it is real or a toy. Id. at 868, 664 P.2d 1291.

The court affirmed both convictions, reasoning:

It seems to us that where the accused indicates (verbally or otherwise) the presence of a weapon (real or toy), the effect on the victim is the same whether it is actually seen by the victim or whether it is directed at the victim from inside a pocket. In either situation the apprehension and fear is created which leads the victim to believe the robber is truly armed with a deadly weapon. Accordingly, the victim feels compelled to comply with the accused's demand for money....

... Here, the evidence established both victims apprehended defendant's words and actions to mean he had a gun. We hold, therefore, the trial court properly submitted the first degree robbery charges to the jury....

Id. at 868-69, 664 P.2d 1291 (footnote omitted) (emphasis added).

This reasoning is further illustrated in Kennard, 101 Wash.App. 533, 6 P.3d 38, and State v. Barker, 103 Wash.App. 893, 14 P.3d 863 (2000), review denied (No. 70664-6), 143 Wash.2d 1021, 25 P.3d 1019 (June 5, 2001). In Kennard, the defendant demanded money from a bank teller. He then stated he had a gun, patted his hip, and told the teller he knew where she lived. The defendant was convicted of first degree robbery, and the court upheld the giving of the following jury instruction based on Henderson:

"`To display what appears to be a firearm' means to exhibit or show what appears to be a firearm to the view of the victim or to otherwise manifest by words and actions the apparent presence of a firearm even though it is not actually seen by the victim."

Kennard, 101 Wash.App. at 537, 6 P.3d 38 (emphasis added).

In Barker, the defendant entered a store and told the clerk he had a gun but never displayed one. He ordered the clerk to give him cash and threatened to shoot her if she did not hurry up. When she turned away, he pressed something hard into her back that she perceived to possibly be a gun. Barker, 103 Wash.App. at 897, 14 P.3d 863. There was no evidence that the defendant in fact had a gun. A friend of the defendant testified that the defendant told him he just used his finger behind his shirt. Id. at 899, 14...